Both sides are claiming victory in the U.S. Supreme Court's decision on genetically engineered seeds. Ruling 7-1 in favor of Monsanto, a major seed supplier, the high court reversed a lower court's injunction banning the sale of genetically modified alfalfa seeds. At the same time, the Court upheld a ruling that bans the sale of GM alfalfa.
So, who won, and when will cows munch on GM alfalfa?
Monsanto won the battle, but environmentalists landed some hard blows; next summer is the earliest the still-banned seeds could be planted. Numerically, the justices came down firmly on Monsanto's side. But in their decision the high court focused on the legality of the ban, not on the legality of the seeds.
GM alfalfa is still banned (the goal of Monsanto's opponents), and will remain so until the Animal and Plant Health Inspection Service (APHIS), the wing of the U.S. Department of Agriculture that oversees biotech crops, conducts a review.
In an email about the Supreme Court's Monday decision, APHIS said they hope to complete their review "in time for the spring planting of alfalfa crops in 2011." That's if there are no more lawsuits or injunctions. A 2009 review of the seeds by APHIS showed no significant harm, but the agency still has to comb through more than 200,000 public comments about the issue before it can rule.
Montsanto is crowing over the Supreme Court's decision. Steve Welker, Monsanto's alfalfa business lead, said, "this is exceptionally good news received in time for the next planting season. Farmers have been waiting to hear this for quite some time. We have Roundup Ready alfalfa seed ready to deliver and await USDA guidance on its release. Our goal is to have everything in place for growers to plant in fall 2010."
Not so fast, said Andrew Kimbrell, Executive Director of the Center for Food Safety, a plaintiff in the case. In an article in the Huffington Post, Kimbrell writes that "while the High Court ruled in favor of Monsanto by reversing an injunction that was part of the lower court's decision, more importantly, it also ruled that the ban on GMO alfalfa remains intact, and that the planting and sale of GMO alfalfa remains illegal."
The decision, according to Kimbrell, "is actually a huge victory."
Monday's Supreme Court decision began in 2005, when the USDA approved the sale and planting of Monsanto's genetically modified alfalfa. By altering its genetic structure, scientists made alfalfa (the fourth most planted crop in the United States) that withstood Monsanto's powerful and popular herbicide Roundup. More than 5,500 farmers planted the GM seeds on approximately 220,000 acres, according to Monsanto.
In 2007 a federal judge in San Francisco, District Judge Charles Breyer (brother of Supreme Court Justice Stephen Breyer, who recused himself from the case because of his familial involvement) ruled that the FDA had prematurely approved the seeds. Breyer canceled the seeds' approval and banned the planting the seeds across the entire country. The 9th U.S. Circuit Court of Appeals upheld the ruling in 2009.
Questions of genetics, economics, legality, separation of powers, environment, and other issues were all raised in the Supreme Court case. In the end though, Supreme Court Justice Samuel Alito, writing for the majority, ruled on essentially one point: District Court Judge Breyer overstepped his authority.
"We agree that the district court's injunction against planting went too far," wrote Justice Alito. "In sum, the District Court abused its discretion."
Justice John Paul Stevens, the lone dissenter, argued that the lower court was in a better position to rule on the case, and that the justices should have deferred to its judgment.
The decision gives a win to Monsanto (and its allies, which included the American Petroleum Institute and the National Association of Home Builders, which filed friend-of-the-court briefs supporting Monsanto), but how the decision was made gives environmentalists new weapons, according to the Center for Food Safety.
In Monday's ruling, the Court upheld the ban of GM alfalfa until the USDA completed its review. Also, for the first time, the ruling recognizes economic impacts like reduced yield count as an environmental harm. Furthermore, the court recognized that gene flow (or crossing genetically modified crops with wild, unmodified crops) is harmful and illegal under existing environmental protections.
If the genes that help Monstanto's plant survive Roundup end up in weeds (something that Monstano claims is unlikely) then all farmers will face lower yields and lower profits from these so-called "superweeds."
Some of these legal remedies could be used against Monsanto as early as next month. Monsanto is currently involved in another lawsuit about its modified, Roundup-resistant sugar beets: last September a federal judge ruled that the USDA failed to the properly assess the beets' environmental impact. A court date is that case is scheduled for July.